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Commonwealth v. Roles

Superior Court of Pennsylvania

May 8, 2015

BRIAN J. ROLES, Appellant

Appeal from the Judgment of Sentence September 25, 2013. In the Court of Common Pleas of Cambria County. Criminal Division at No(s): CP-11-CR-0001464-2012.



Page 123


Brian J. Roles appeals from the aggregate judgment of sentence of eight and one-half to seventeen years' incarceration after a jury found him guilty of homicide by vehicle while driving under the influence (" DUI" ) of alcohol or controlled substances, homicide by vehicle, aggravated assault by vehicle while DUI, involuntary manslaughter, two counts of recklessly endangering another person (" REAP" ), DUI--second offense general impairment, DUI--second offense highest rate, and DUI--second offense drug and alcohol combination.[1] After careful review, we affirm.

The facts of this case arise out of a vehicle collision in which Appellant's sixteen-year-old son was killed. At approximately 10:30 or 10:45 p.m. on Easter Sunday, April 8, 2012, Appellant was driving his truck with his son in the front passenger seat. Kevin Roles, Appellant's nephew, was seated in a rear passenger seat. Appellant lost control of his vehicle and struck a utility pole. The accident caused his son to be ejected from the vehicle. Appellant's son was flung approximately fifty feet from the vehicle and pronounced dead at the scene.

Officer Shaun Gregory arrived on the scene at approximately 10:57 p.m. Appellant admitted to him that he had been driving the vehicle. According to Appellant, he was driving northbound when another car traveling in the opposite direction entered his lane of travel, causing him to lose control and swerve off the roadway onto an embankment. The officer further observed that Appellant had glassy bloodshot eyes, slurred his speech, and smelled of alcohol. Accordingly, Officer Gregory requested another officer to transport Appellant to Conemaugh Hospital for blood testing. While being transported, Appellant repeatedly asked if he killed his son. Blood alcohol testing revealed that Appellant had a blood alcohol content (" BAC" ) of .17%. In addition, Appellant's blood tested positively for oxycodone and alprazolam, commonly known respectively as Oxycontin and Xanax.

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Appellant also admitted to Dr. Matthew Perry, a treating emergency room doctor, that he had been driving. The Commonwealth filed the criminal complaint in this matter on July 30, 2012. Appellant turned himself in to authorities on August 6, 2012. The case proceeded to trial on August 22, 2013, when jury selection began.

At trial, in addition to the above-referenced facts, the Commonwealth provided testimony from Corporal Thomas Carrick, a Pennsylvania State Trooper and accident reconstructionist, and Greg Sullenberger, an accident reconstructionist and expert in occupant kinematics.[2] Corporal Carrick, during examination by the court, testified that he no longer held the view he expressed in his report that the roof of the truck impacted the utility pole. Instead, he explained, under questioning by the court, that his opinion was now consistent with Mr. Sullenberger as to the place of impact. In this respect, the Commonwealth's experts opined that the truck's sidestep bar on the passenger side struck the pole.

Mr. Sullenberger also testified that the victim's injuries were consistent with having been expelled from the passenger side of the vehicle. Kevin Roles originally testified that Appellant's son had been driving. However, later in the trial, without the Commonwealth having sought the testimony, he tearfully recanted his earlier statements and asserted that Appellant had been the driver. In contrast, Appellant provided expert testimony from Thomas Laino expressing that Appellant's son had been driving. The jury elected to credit the Commonwealth's evidence and found Appellant guilty of the aforementioned charges. The court imposed sentence, and this timely appeal ensued.

The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the trial court authored its opinion. Appellant raises three issues for this Court's review.[3]

I. Whether the Trial Court abused its discretion and/or committed an error of law when it denied Appellant's Motion to Dismiss Charges with Prejudice pursuant to Pa.R.Crim.P. 600?
II. Whether the Trial Court erred in sending with the Jury, the Report of Eric Roslonski, MD, which has been marked as Commonwealth's Exhibit 73 but was not admitted into evidence?
III. Whether the Trial Court erred in not excluding the testimony of Corporal Thomas Carrick and/or not issuing a cautionary or curative instruction to the Jury relative to his expert opinion which was not provided to the Defense prior to trial?

Appellant's brief at 4.

Appellant's initial claim relates to Pa.R.Crim.P. 600. Rule 600 requires the Commonwealth to try a defendant within 365 days of the filing of a criminal complaint.[4]

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A defendant, however, is not automatically entitled to discharge under Rule 600 where trial starts more than 365 days after the filing of the complaint. Commonwealth v. Goldman, 2013 PA Super 189, 70 A.3d 874, 879 (Pa.Super. 2013). Rather, Rule 600 " provides for dismissal of charges only in cases in which the defendant has not been brought to trial within the term of the adjusted run date, after subtracting all excludable and excusable time." Id. The adjusted run date is calculated by adding to the mechanical run date, i.e., the date 365 days from the complaint, both excludable and excusable delay. Id.

Excludable time includes delay caused by the defendant or his lawyer. Id. Concomitantly, excusable delay occurs where the delay is caused by " circumstances beyond the Commonwealth's control and despite its due diligence." Id. " Due diligence is a fact-specific concept that must be determined on a case-by-case basis. Due diligence does not require perfect vigilance and punctilious care, but rather a showing by the Commonwealth that a reasonable effort has been put forth." Commonwealth v. Armstrong, 2013 PA Super 220, 74 A.3d 228, 236 (Pa.Super. 2013) (citation omitted).

Additionally, when considering Rule 600, we remain cognizant that Rule 600 serves two purposes. While it is intended to protect a defendant's speedy trial right, it also protects society's interest in prosecuting crime. Accordingly, where " there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 600 must be construed in a manner consistent with society's right to punish and deter crime." Id. at 235.

" In evaluating Rule 600 issues, our standard of review of a trial court's decision is whether the trial court abused its discretion." Commonwealth v. Peterson, 2011 PA Super 92, 19 A.3d 1131, 1134 (Pa.Super. 2011) ( en banc ). Further, we review " the facts in the light most favorable to the prevailing party." Id. at 1135. Our scope of review is " limited to the evidence on the record of the Rule 600 evidentiary hearing, and the findings of the trial court." Id. The Commonwealth has the burden of establishing by a preponderance of the evidence that it exercised due diligence throughout the prosecution. Commonwealth v. Selenski, 606 Pa. 51, 994 A.2d 1083 (Pa. 2010).

Instantly, Appellant was charged on July 30, 2012. Accordingly, his mechanical run date was July 30, 2013. Jury selection began on August 22, 2013, twenty-three days beyond the mechanical run date. Appellant did not request any continuances and filed a Rule 600 motion on August 19, 2013. The court denied that motion, finding that Appellant was unavailable for trial from July 30, 2012 until September 17, 2012, because his public defender had not entered an appearance. In its subsequent Pa.R.A.P. 1925(a) opinion, the court added that Appellant was unavailable for trial as a result of a stay in an alcohol rehabilitation center.

Appellant argues that the trial court erred in relying on Commonwealth v. Solano, 588 Pa. 716, 906 A.2d 1180 (Pa. 2006), in determining that " all time during which a defendant lacks an attorney should be excluded[.]" Appellant's brief at 10. He maintains that only " delays attributed to a defendant's lack of representation shall be excluded." Id. According to Appellant, his

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lack of an attorney did not cause a delay in the case. He notes that he did not seek a continuance of the preliminary hearing ...

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